The Supreme Court has observed that it is not mandatory for the Magistarte to consider a Domestic Incident Report filed by a Protection Officer or service provider before passing any order in application filed by the aggrieved person herself or her advocate under the Domestic Violence Act.
The Division Bench comprising of Justice M.R. Shah and Justice B.V. Nagarathna was adjudicating upon an appeal in matrimonial dispute when it considered the legal question of whether the consideration of Domestic Incident Report is mandatory before initiating the proceedings under D.V. Act, in order to invoke substantive provisions of Sections 18 to 20 and 22 of the said Act?
In the impugned judgement, the Uttarakhand High Court had held that as per the provisions of Section 12 (1) of the D.V. Act, a Domestic Incident Report is required to be mandatorily filed by a Protection Officer or a service provider before the Magistrate and the Magistrate may take cognizance of an offence under the D.V. Act on the basis of such report
The Court at the outset referred to a slew of cases whererin provisions of Domestic Violence Act were interpreted.
It mentioned V.D. Bhanot Vs. Savita Bhanot, 2012 Latest Caselaw 99 SC, Saraswathy Vs. Babu, 2013 Latest Caselaw 814 SC, SATISH CHANDER AHUJA vs. SNEHA AHUJA, 2020 Latest Caselaw 561 SC,
The Court noted at the outset that Section 12 of the D.V. Act states that an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act.
"The proviso, however, states that before passing any order on such an application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider. The expression ‘aggrieved person’ as defined under Section 2(a) means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Domestic relationship as defined in Section 2(f), means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Domestic violence has the same meaning as assigned to it in Section 3."
It is necessary to appreciate the importance and significance of the right of every woman in a domestic relationship to reside in a shared household. As already noted, the expression ‘shared household’ is expansively defined in Section 2(s) of the D.V. Act but the expression contained in Section 17 namely, ‘every woman in a domestic relationship shall have the right to reside in the shared household irrespective whether she has any right, title or beneficial interest in same’, requires an expansive interpretation. The Court referred to Harbhajan Singh Vs. Press Council of India & Ors, 2002 Latest Caselaw 127 SC
While the object and purpose of the D.V. Act is to protect a woman from domestic violence, the salutary object of Sub-Section (1) of Section 17 is to confer a right on every woman in a domestic relationship to have the right to reside in a shared household, the Court noted.
Clause (e) of Section 2 defines a Domestic Incident Report to be a report made in the prescribed form on receipt of a complaint of domestic violence from an aggrieved person. As noted from Section 12, an aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person including the service provider vide SubSection (1) of Section 10 of the D.V. Act, may present an application to the Magistrate seeking one or more reliefs under the D.V. Act. Proviso to Sub-Section (1) of Section 12 states that before passing any order on such an application, the Magistrate shall take into consideration any Domestic Incident Report received by him from the Protection Officer or the service provider.
The Court stated that it is clear that an aggrieved person on her own or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the D.V. Act but the proviso states that when a Domestic Incident Reported is received by the Magistrate from the Protection Officer or the service provider, in such a case, the same shall be taken into consideration
Therefore, when an aggrieved person files an application by herself or with the assistance of an advocate and not with the assistance of the Protection Officer or a service provider, in such a case, the role of the Protection Officer or a service 26 provider is not envisaged, the Court remarked.
On the question as to can it be said that in the absence of a Domestic Incident Report, the Magistrate cannot pass any order under the D.V. Act particularly when an application is filed before the Magistrate by the aggrieved person by herself or through a legal counsel?
The Court opined that it is not the intention of the provison, although, the expression ‘shall’ is used in the proviso, it is restricted to only those cases where a Protection Officer files any Domestic Incident Report or, as the case may be, the service provider files such a report.
"When a Domestic Incident Report is filed by a Protection Officer or a service provider, in such a case the Magistrate has to take into consideration the said report received by him. But if such a report has not been filed on behalf of the aggrieved person then he is not bound to consider any such report. Therefore, the expression ‘shall’ has to be read in the context of a Domestic Incident Report received by a Magistrate from the Protection Officer or the service provider as the case may be in which case, it is mandatory for the Magistrate to consider the report. But, if no such report is received by the Magistrate then the Magistrate is naturally not to consider any such Domestic Incident Report before passing any order on the application."
Stating that the Domestic Incident Report is not a sine qua non for entertaining or deciding the application under Section 12 of the D.V. Act by the learned Magistrate, the Court cited Ishverlal Thakorelal Almaula Vs. Motibhai Nagjibhai, 1965 Latest Caselaw 150 SC, Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories, 1964 Latest Caselaw 228 SC, Kedarnath Jute Mfg. Co. Ltd. Vs. Commissioner of Income Tax, Central Calcutta, 1971 Latest Caselaw 202 SC, Dattatraya Govind Mahajan & Ors Vs. State of Maharashtra & ANR, 1977 Latest Caselaw 31 SC, S. Sundaram Pillai Vs. V.R. Pattabiraman, 1985 Latest Caselaw 13 SC
Noting that the aggrieved person can by herself or through her advocate approach the Magistrate for seeking any of the reliefs under the D.V. Act. In such an event, the filing of a Domestic Incident Report does not arise.
"The use of the expression ‘shall’ in the proviso has to be read contextually i.e., the Magistrate is obliged to take into consideration any Domestic Incident Report received by him when the same has been filed from the Protection Officer or the service provider in a case where the application is made to the Magistrate on behalf of the aggrieved person through a Protection Officer or a service provider. If the intention of the Parliament had been that filing of the Report by the Protection Officer is a condition precedent for the Magistrate to act upon the complaint filed by an aggrieved person even when she files it by herself or through her advocate then it would have been so expressed. But a conjoint reading of Sub-Section (1) of Section 12 with the proviso does not indicate such an intention. Thus, the plenitude of power under Section 12 of the D.V. Act is accordingly interpreted and pre-requisite for issuing notice to the respondent on an application filed by the aggrieved person without the assistance of a Protection Officer or service provider and thus there being an absence of Domestic Incident Report, does not arise. If a contrary interpretation is to be given then the opening words of Sub-Section (1) of Section 12 would be rendered otiose and it would be incumbent for every aggrieved person to first approach a Protection Officer or a service provider, as the case may be, and get a Domestic Incident Report prepared and thereafter to approach the Magistrate for reliefs under the D.V. Act, which is not the intention of the Parliament."
Case Title: PRABHA TYAGI VS. KAMLESH DEVI
Case Details: CRIMINAL APPEAL NO. 511 OF 2022
Coram: Justice M.R. Shah and Justice B.V. Nagarathna
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